The California Supreme Court’s decision yesterday centered not on a single question, but a few. Of the challenges to Prop. 8, the most salient was the procedural question of whether the effect of Prop. 8 was “big enough” to constitute a revision of the equal protection clause. I discuss the three issues the court considered as well as some related questions.

QUESTION 1: The judges were asked to decide whether Prop. 8 modified equal protection substantively enough to constitute a revision. Basically, the state’s Supreme Court found that NO, Prop. 8 did not constitute a fundamental revision of equal protection, which requires passage by the legislature and a public referendum, and therefore could stand as an amendment.

Instead, the measure carves out a narrow and limited exception to these state constitutional rights, reserving the official designation of the term “marriage” for the union of opposite-sex couples as a matter of state constitutional law, but leaving undisturbed all of the other extremely significant substantive aspects of a same-sex couple\’s state constitutional right to establish an officially recognized and protected family relationship and the guarantee of equal protection of the laws.

The court is pointing out here that the only thing at stake here is the term “marriage.” Gays and lesbians retain all the rights granted by marriage in the state as articulated in In Re Marriage Cases, the decision which overturned the statutory ban on gay marriage last May. The court’s previous decision also elevated protections for gays and lesbians to the level offered to blacks and women; these protections, too, remain intact.

The passage of Prop. 8 has, according to the justices, “minimal effect on the governmental plan or framework of California that existed prior to the amendment” and therefore cannot be considered a revision to the state constitution. The judges relied heavily on this criteria — effect on governmental framework — in deciding that Prop. 8 was not a revision. They also considered the “qualitative” effect of Prop. 8 — how it affected the nature and credibility of the constitution — but fell back on the “qualitative” question of its concrete effects in deciding the matter.

Can rights be taken away by a simple majority vote?

The short answer is, yes. There have been many instances in which the California Supreme Court allowed a fundamental right to be altered in some way because of an amendment. For instance, after the court found in 1972 that the death penalty constituted “cruel and unusual punishment,” voters reinstated it by using a ballot measure. One point the justices brought up was that there have also been many instances in which a right was extended by amendment — why then, they reason, could it not be curtailed?

As many commentators have pointed out, the amendment process in California is liberal as compared to other states, which is part of the reason why hundreds of amendments to the state constitution (as opposed to 27 for the U.S. Constitution) have been enacted. More importantly, the justices pointed out, the California Constitution has no provision in it preventing an amendment that revises fundamental rights. Massachusetts, on the other hand, does; you can’t revise the state constitution’s Bill of Rights. It would also be another thing if we were talking about the U.S. Constitution.

It’s important to keep in mind that the constitutional structure of California government in part constrains what the judges can rule in favor of; unlike other state constitutions, California’s does little to stand in the way of majority rule. Even gay legal advocates thought this was a long shot.

Is this like “separate but equal”?

Yes and no. Many BTB readers have commented on how this decision is reminiscent of the “separate but equal” decision that allowed segregation to continue. I think it’s important to note that the right in question here is not really equivalent in scale to segregation. We are not talking about separate public accommodations — we’re talking about the right to a label, which, while culturally and politically significant, does not approach the rights in question in Plessy v. Ferguson. I am not saying I think the decision is just or fair, only that comparing it to “separate but equal” strikes me as a bit hyperbolic.

QUESTION 2: The second argument the justices considered was whether Prop. 8 violated the “separation of powers” by allowing the electorate to decide on a matter already settled by the courts. The justices rejected this argument outright, saying that the California Constitution “explicitly recognizes the right of the people to amend their state Constitution.”

This argument was even more of a long shot than the first. It was basically saying that the electorate “usurped” the power of the judiciary.

QUESTION 3: The final question the judges considered was not proposed by Lambda Legal, which brought the case to the court, but by the state’s Attorney General. He argued that certain rights enshrined in the state constitution are “inalienable” and “not subject to ‘abrogation.'” Again, the justices fell back on the fact that the state constitution does not explicitly designate certain rights as such, as opposed to other constitutions that do.

The court’s decision is of course a personal regret, but I think the moral question of whether this is, in a sense, “right” is different from the legal question of whether Prop. 8 could be overturned. It is telling that the justices voted 6-1 in favor of upholding Prop. 8, though for the dissenting opinion one can look to the decision here (it’s at the end).

What the justices argued was akin to saying that while the right to drink water wouldn’t be affected, a narrow designation would be carved out for whites, i.e. what fountains they would drink from. Substantially the same.

Good analysis, Gabe. While the decision is unfortunate in many ways, the way the judges framed it shows that they understand that this was only a small setback in an inevitable expansion of gay rights in California.

Please, as a bisexual Hoosier, I implore you to keep up the fight for true marriage while “millions of gays and lesbians can still be legally fired for being gay, cannot adopt children, and have no rights comparable to those offered by marriage or civil unions in places like California.” Gay rights aren’t going to come to places like Indiana any time soon. But, I can at least look on with happiness as it happens in other places, and fantasize about moving to friendly places like New England when the Hoosier crunch gets too onerous!

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